Discrimination in Employment: Sex

1. Discrimination in Employment: Sex • Changing Environment • The Law: Title VII, FCRA, and the ADEA • The Supreme Court: Ellerth and Faragher • Responding to Complaints: The Affirmative Defense & Retaliation

2. Changing Environment • Employees spending more hours at work • Workforce Demographics: (workforce 46 % female) • Team Concept – • Increase in state and federal laws regulating workplace conduct + litigious workforce

3. Title VII & FCRA • Defining Sexual Harassment • Quid pro quo: occurs when an employer or supervisor links specific employment outcomes to the individuals’ granting sexual favors. • Hostile Environment: occurs when the harassment has the effect of unreasonably interfering with work performance or psychological well-being or when intimidating offensive working conditions are created.

4. Quid pro Quo • Only a supervisor or manager can commit • The demand for sexual favors in return for job benefits can be explicit or implicit • Job benefits at issue must be tangible, e.g., promotion, job retention, leave, job assignments. • One instance of quid pro quo harassment is sufficient to constitute a violation of Title VII

5. Hostile Environment • A supervisor, co-worker, or non-employee can commit this type of harassment • Nothing tangible about the individual’s job need be affected • Key issues are frequency and severity • Reasonable person standard governs • Severe psychological harm is not necessary to establish violation (Harris v. Forklift Systems)

6. Changing Legal Standard • Sexual harassment, whether quid pro quo or hostile environment, or whether with different or same-sex individuals is illegal. • If the employee suffered any tangible employment action (such as being denied raises, being terminate, or being refused access to training) because of the sexual harassment, the employer is liable. • The employer may even be liable where the employee suffered no tangible adverse employment action (Ellerth)

7. Affirmative Defense and Reasonable Care • Employers may be able to escape liability in cases where no tangible job action is taken if reasonable care to prohibit sexual harassment was taken and the employee unreasonably fails to take advantage of any preventive or corrective opportunities provided by the employer.

8. Elements of Affirmative Defense & Reasonable Care: • Establishing a sexual harassment policy • Communicating the policy regularly • Training all employees, especially supervisors and managers, on dealing with sexual harassment allegations. • Investigating and taking action when complaints are voiced (Segal #5)

9. Other Gender Discrimination Issues • Pregnancy Discrimination in Employment Act: pregnancy must be treated like any other illness – close relationship to FMLA – leave issue • Equal Pay Act – pay differential permitted when based on seniority, performance, quality and/or quantity of production, and for factors other than sex that involve, skill, effort, and working conditions.

10. Fair Credit Reporting Act (FCRA) • 1996 amendments to FCRA resulted in numerous notification and disclosure requirements for all employers that use a third part to conduct any type of employee or applicant background checks – • Requires that an employer seek prior written permission from the accused before an investigation could proceed and that the accused should receive a copy of the investigation before any adverse action is taken.